Calaveras County Municipal Code Ch. 5.13 State Video Service Franchises

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Editor's note— Ord. No. 2996, § 1, adopted Aug. 9, 2011 enacted provisions codified herein as Ch. 5.13, §§ 5.13.010—5.13.080. In addition, Section 2 of Ord. No. 2996 states that "To the extent that the terms and provisions of this ordinance may be inconsistent or in conflict with the terms or conditions of any prior county ordinance, motion, resolution, rule or regulation governing the same subject, the terms of this ordinance shall prevail with respect to the subject matter thereof and such inconsistent or conflicting provisions of prior ordinances, motions, resolutions, rules or regulations are hereby repealed."

A. Purpose. This chapter is intended to be applicable to state franchise holders who have been awarded a state video franchise under Division 2.5 (commencing with Section 5800) of the Public Utilities Code (the "Digital Infrastructure and Video Competition Act of 2006" or "DIVCA"), to serve any location(s) within the unincorporated areas of the county. It is the purpose of this chapter to implement within the unincorporated areas of the county the provisions of DIVCA and the rules of the California Public Utilities Commission promulgated thereunder that are applicable to a "local franchising entity" or a "local entity" as defined in DIVCA.

B. Rights Reserved.

1. The rights reserved to the county under this chapter are in addition to all other rights of the county, whether reserved by this chapter or authorized by law, and no action, proceeding or exercise of a right shall affect any other rights which may be held by the county.

2. Except as otherwise provided by DIVCA, a state franchise shall not include, or be a substitute for:

a. Compliance with applicable requirements for the privilege of transacting and carrying on a business within the county, including, but not limited to, compliance with the conditions that the county may establish before facilities may be constructed for, or providing, non-video services;

b. Any permit or authorization required in connection with operations on or in public rights-of-way or public property, including, but not limited to, encroachment permits, street work permits, pole attachment permits and street cut permits; and

c. Any permit, agreement or authorization for occupying any other property of the county or any private person to which access is not specifically granted by the state franchise.

3. No permit issued by the county to a state franchise holder is itself a franchise, nor shall any permit create a vested right that would prohibit the county from revoking or amending the permit.

C. Compliance with Calaveras County Code and Ordinances. Nothing contained in this chapter shall be construed to exempt a state franchise holder from compliance with all codes, ordinances, rules or regulations of the county now in effect or which may be hereafter adopted which are consistent with this chapter or California Public Utilities Code section 5800 et seq., or any obligations under any franchise issued by the county insofar as those obligations may be enforced under California Public Utilities Code § 5800 et seq.

D. Compliance with DIVCA. When a video service provider holding a state franchise provides notice to the county pursuant to 5840(m) of DIVCA that it is commencing to provide video service to the county, a holder of a county franchises shall seek a state franchise pursuant to 5930(c) of DIVCA, and upon issuance of the state franchise by the California Public Utilities Commission for the franchise area, the county franchise shall terminate.

(Ord. No. 2996, § 1, 8-9-2011)

Definitions Generally—Interpretation of Language. For purposes of this chapter, the following terms, phrases, words, and their derivations shall have the meaning given in this Section 5.13.020. Unless otherwise expressly stated, words not defined in this section have the same meaning as established in Section 5.12.010 of this code as may be amended from time to time, unless the context indicates otherwise. Words not defined in this section or Section 5.12.010 of this code shall have the same meaning as established in: (1) DIVCA; and if not defined therein, (2) California Public Utilities Commission rules implementing DIVCA; and if not defined therein, (3) Title VI of Title 47 of the Communications Act of 1934, as amended (47 U.S.C. § 521, et. seq.); and if not defined therein, (4) their common and ordinary meaning. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, words in the singular number include the plural number, and "including" and "include" are not limiting. The words "shall" and "will" are always mandatory, but the use of those terms grants no private rights to any person with respect to the county. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision. References to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however denominated, and include laws, codes, ordinances and regulations now in force or hereinafter enacted or amended.

A. "Gross revenues" means all revenues actually received by the holder of a state franchise or its affiliates that are derived from the operation of the holder's network to provide cable service or video service within the unincorporated areas of the county.

B. "PEG access," or "PEG" means the availability of a cable or state franchise holder's system for public, educational, or governmental use by various agencies, institutions, organizations, groups, and individuals, including organizations, groups, or individual members of the general public, educational institutions, and the county and its designated access providers, to acquire, create, and distribute programming not under a state franchise holder's editorial control.

C. "State franchise holder" means a cable operator or video service provider that has been issued a franchise by the California Public Utilities Commission to provide cable service or video service, as those terms are defined in California Public Utilities Code § 5830, within any portion of the incorporated limits of the county.

(Ord. No. 2996, § 1, 8-9-2011)

A. State Franchise Fees. Any state franchise holder operating within the unincorporated areas of the county shall pay to the county a state franchise fee equal to five percent of gross revenues that may be subject to a franchise fee under California Public Utilities Code § 5860.

B. Payment of Franchise Fees. The state franchise fee required pursuant to this section shall be paid quarterly, in a manner consistent with California Public Utilities Code § 5860. The state franchise holder shall deliver to the county, by check or other means, which shall be agreed to by the county, a separate payment for the state franchise fee not later than forty-five days after the end of each calendar quarter. Each payment made shall be accompanied by a report, detailing how the payment was calculated, and shall include such additional information on the appropriate form as designated by the county.

C. Examination of Business Records. The county may examine the business records of the holder of a state franchise in a manner consistent with California Public Utilities Code § 5860(i).

D. Late Payments. In the event a state franchise holder fails to make payments required by this section on or before the due dates specified in this section, the county may impose a late charge at the rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent.

(Ord. No. 2996, § 1, 8-9-2011)

A. Customer Service Standards. A state franchise holder shall comply with §§ 53055, 53055.1, 53055.2 and 53088.2 of the California Government Code; the FCC customer service and notice standards set forth in Sections 76.309, 76.1602, 76.1603, and 76.1619 of Title 47 of the Code of Federal Regulations; § 637.5 of the California Penal Code; the privacy standards of Section 551 of Title 47 of the United States Code; and, to the extent consistent with DIVCA, all other applicable state and federal customer service and consumer protection standards pertaining to the provision of video service, include any such standards hereafter adopted. In case of a conflict, the stricter standard shall apply. All customer service and consumer protection standards under this paragraph shall be interpreted and applied to accommodate newer or different technologies while meeting or exceeding the goals of the standards.

B. Penalties for Violations of Standards. The county may enforce the compliance of state franchise holders with respect to the state and federal customer service and consumer protection standards set forth herein. The county will provide a state franchise holder with a written notice of any alleged material breaches, as defined in California Public Utilities Code § 5900, of applicable customer service or consumer protection standards, and will allow the state franchise holder thirty days from the receipt of the notice to remedy the specified material breach. Material breaches not remedied by a state franchise holder within the thirty-day time period, irrespective of the number of customers affected, will be subject to the following penalties to be imposed by the county:

1. For the first occurrence of a material breach, a fine of five hundred dollars may be imposed for each day the violation remains in effect, not to exceed one thousand five hundred dollars for each violation.

2. For a second material breach of the same nature within twelve months, a fine of one thousand dollars may be imposed for each day the violation remains in effect, not to exceed three thousand dollars for each violation.

3. For a third material breach of the same nature within twelve months, a fine of two thousand five hundred dollars may be imposed for each day the violation remains in effect, not to exceed seven thousand five hundred dollars for each violation.

C. All penalties imposed by the county shall be imposed in a manner consistent with California Public Utilities Code § 5900.

(Ord. No. 2996, § 1, 8-9-2011)

A. Except as expressly provided in this chapter or as otherwise provided by DIVCA, all provisions of Chapter 12.08 ("Encroachment on Public Highways") of this code, and all county administrative rules and regulations developed to any of these provisions, as now existing or as hereafter amended, shall apply to all work performed by or on behalf of a state franchise holder on any county public right-of-way, public property, or easement.

B. Permits. Prior to commencing any work for which a permit is required by Chapter 12.08 of this code, a state franchise holder shall apply for and obtain a permit in accordance with the provisions of Chapter 12.08 and shall comply with all other applicable laws and regulations, including but not limited to all applicable requirements of Division 13 of the California Public Resources Code § 21000, et seq. (the California Environmental Quality Act or "CEQA") and the CEQA Guidelines (14 California Code of Regulations 15000, et seq.).

C. The director of public works, or designee, shall either approve or deny a state franchise holder's application for any permit required under Chapter 12.08 [of this code] within sixty days after receiving a completed permit application from the state franchise holder.

D. If the director of public works, or designee, denies a state franchise holder's application for a permit, the director of public works, or designee, shall, at the time of notifying the applicant of denial, furnish to the applicant a detailed explanation of the reason or reasons for the denial.

E. A state franchise holder that has been denied a permit by final decision of the director of public works, or designee, may appeal the denial to the board of supervisors. Upon receiving a notice of appeal, the board of supervisors shall take one of the following actions:

1. Affirm the action of the director of public works, or designee, without any further hearing; or

2. Refer the matter back to the director of public works, or designee, for further review with or without instructions; or

3. Set the matter for a de novo hearing before the board of supervisors.

F. In rendering its decision on the appeal, the board of supervisors shall not receive or consider any argument or evidence of any kind other than the record of the matter received from the director of public works, or designee, unless the board of supervisors is itself conducting a public hearing on the matter.

G. The issuance of a permit is not a franchise, and does not grant any vested rights in any location in the public rights-of-way, or in any particular manner of placement within the rights-of-way. Without limitation, a permit to place cabinets and similar appurtenances aboveground may be revoked and the permittee required to place facilities underground, in accordance with applicable law.

(Ord. No. 2996, § 1, 8-9-2011)

Each state franchise holder shall comply with the emergency alert system requirements of the Federal Communications Commission in order that emergency messages may be distributed over the state franchise holder's network. To the extent consistent with Public Utilities Code § 5880, each state franchise holder shall install and maintain any necessary return lines or headend equipment to enable the county to access the holder's headend for use during an emergency or disaster period, as such capability was required under county franchise in effect on January 1 to December 30, 2006.

(Ord. No. 2996, § 1, 8-9-2011)

A. PEG Channel Capacity. A state franchise shall designate a sufficient amount of capacity on its network to allow the provision of at least three PEG channels to satisfy the requirement of § 5870 of the California Public Utilities Code, within the time limits specified therein.

B. Additional PEG Channel Capacity. A state franchise holder shall provide an additional PEG channel when the standards set forth in § 5870(d) of the California Public Utilities Code are satisfied by the county or any entity designated by the county to manage one or more of the PEG channels.

C. PEG Support.

1. Amount of PEG Support Fee. Any state franchise holder operating within the unincorporated area of the county shall pay to the county or, if directed by the county, to the county's designated PEG provider, a PEG support fee equal to one percent of gross revenues.

2. The PEG support fee shall be used for PEG purposes in a manner that is consistent with state and federal law.

3. A state franchise holder shall remit the PEG support fee quarterly, within forty-five days after the end of each calendar quarter. Each payment made shall be accompanied by a summary, detailing how the PEG support fee was calculated.

4. In the event that a state franchise holder fails to pay the PEG support fee when due, or underpays the proper amount due, the state franchise holder shall pay interest at the rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent, or the maximum rate specified by state law.

E. PEG Carriage and Interconnection.

1. As set forth in §§ 5870(b) and 5870(g)(3) of the California Public Utilities Code, state franchise holders shall ensure that all PEG channels are receivable by all subscribers, whether they receive digital or analog service, or a combination thereof, without the need for any equipment other than that needed to receive the lowest cost tier of service. PEG access capacity provided by a state franchise holder shall be of similar quality and functionality to that offered by commercial channels (unless the PEG signal is provided to the state franchise holder at a lower quality or with less functionality), shall be capable of carrying a National Television System Committee (NTSC) television signal, and shall be carried on the state franchise holder's lowest cost tier of service. To the extent feasible, the PEG channels shall not be separated numerically from other channels carried on the lowest cost tier of service and the channel numbers for the PEG channels shall be the same channel numbers used by any incumbent cable operator, unless prohibited by federal law. After the initial designation of the PEG channel numbers, the channel numbers shall not be changed without the agreement of the county unless federal law requires the change.

2. Where technically feasible, each state franchise holder and each incumbent cable operator shall negotiate in good faith to interconnect their networks for the purpose of providing PEG programming. Interconnection may be accomplished by any means authorized under Public Utilities Code § 5870(h). Each state franchise holder and incumbent cable operator shall provide interconnection of PEG channels on reasonable terms and conditions and may not withhold the interconnection. If a state franchise holder and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement for PEG carriage, the county may require the incumbent cable operator to allow each state franchise holder to interconnect its network with the incumbent cable operator's network at a technically feasible point on the state franchise holder's network as identified by the state franchise holder. If no technically feasible point of interconnection is available, each state franchise holder shall make interconnection available to each PEG channel originator programming a channel in the county and shall provide the facilities necessary for the interconnection. The cost of any interconnection shall be borne by each state franchise holder requesting the interconnection unless otherwise agreed to by the parties.

(Ord. No. 2996, § 1, 8-9-2011)

A. Each state franchise holder or applicant for a state franchise shall file with the county a copy of all applications or notices that the state franchise holder or applicant is required to file with the California Public Utilities Commission.

B. Unless otherwise specified in this chapter, all notices or other documentation that a state franchise holder is required to provide to the county pursuant to this chapter or DIVCA shall be provided to both the county director of public works and the county administrative officer, or their successors or designees.

(Ord. No. 2996, § 1, 8-9-2011)